By the Court,
Mason, J.
It is true, in the action of ejecC ment the plaintiff must recover on the strength of his own title, •and not upon the weakness of his adversary’s title. In the .present case, however, all these parties claim title from the same common source, Barnabas Corwin, deceased, and there is no question as to the plaintiffs’ title and right to recover, unless their title was divested by the proceedings before the surrogate, on the application of the executors to sell this real estate to pay the debts of the said Barnabas Corwin. If those proceedings are valid, and can be maintained, upon the proof in the case, then the plaintiffs are not entitled to recover, and the judgment should be for the defendants. The plaintiffs made a perfect title to the premises, and when they rested their [343]*343case, were entitled to recover. As tbe defendants claimed that the plaintiffs’ title was divested by the proceedings had before the surrogate’s court, he was required to show affirmatively that the surrogate had jurisdiction as well of the subject matter as of the persons to be affected by the sale under the proceedings. The surrogate’s court is a creature of the statute; and being a court of inferior and limited jurisdiction, those claiming under its decree must show affirmatively that the surrogate had authority to make the decree, and that the facts upon which he acted gave him jurisdiction. (Dakin v. Hudson, 6 Cowen, 221. Bloom and others v. Burdick, 1 Hill, 130. Thatcher v. Rowell, 6 Wheat. 119. Cornell and others v. Barnes, 7 Hill, 35, and note e. The People v. Koeber, Id. 40. Sharp and others v. Spier, 4 Id. 76.) It is a familiar principle that every statute authority, in derogation of the common law, to divest the title of one person and transfer it to another, must be strictly pursued, or the title will not pass. (Sharp v. Spier, 4 Hill, 76. Atkins v. Kinnan, 20 Wend. 241. Sherwood v. Reade, 7 Hill, 434. Bloom v. Burdick, 1 Id. 130.) And it has been well said, that “ when lands are to be taken under a statute authority in derogation of the common larw every requisite of the statute having the semblance of benefit to the owner, must be strictly complied with.” (Sharp v. Johnson, 4 Hill, 99.) The following cases are referred to as sustaining this general doctrine. (Williams v. Peyton, 4 Wheat. 77. Hubly v. Keyser, 2 Pen. & Watts, 501. Jackson v. Esty, 7 Wend. 148. Sharp v. Spier, 4 Hill, 76. Jackson v. Shepard, 7 Cowen, 88. Atkins v. Kinnan, 20 Wend. 241. Denning v. Smith, 3 John. Ch. Rep. 332, 344.) The statute under which these proceedings before the surrogate were had, will be found in 1 Rep. Laws of 1813, p. 450, &c. The 23d section of the statute, at page 450, provides, “ that when any executor or administrator, whose testator or intestate shall have died seised of any real estate, shall discover or suspect that the personal estate of such testator or intestate is insufficient to pay his or her debts, such executor or administrator shall, as soon ;as conveniently may be, make a just and true account of the [344]*344said personal estate as far as. he or she can discover tbe same, and deliver the said accounts, to the judge of the court of probates, or to the surrogate of the county in which the probate of the will or administration of the estate of any such testator or intestate shall have been had, and request his aid in the premises; and the said judge or surrogate shall thereupon make an order directing all persons interested in such estate to appear before him at a certain day and place in the same order to be specified, not less than six weeks nor more than ten weeks after the day of making such order, to show cause why so much of the real estate, whereof such testator or intestate died seised, should not be sold, as will be suificicient to pay his or her debts; and which order shall be immediately thereafter published for four weeks successively in two or more of the public newspapers printed in this state, one of which shall be the paper, if any is published, in the county where probate, of any such will shall be had or administration granted,” &c. The statute further provides, that at the time and place specified in such published notice, the surrogate shall hear and examine the proofs and allegations of all persons interested, and “ if the surrogate shall find that the personal estate of such testator or intestate is not sufficient to pay his or her debts, the said surrogate shall make an order for sale,” &c. The first application to the surrogate, in this proceeding, is an ex parte one, and the appearance of no one is contemplated but the executors, or administrators; and they are required to deliver to the surrogate a just and ti;u.© account of the personal estate and debts as far as they can discover the same. This is absolutely necessary to confer jurisdiction upon the surrogate to make the order for publication. (Ford v. Walsworth, 15 Wend. 449. Bloom v. Burdick, 1 Hill, 130. Atkins v. Kinnan, 20 Wend. 241. Ford v. Walsworth, 19 Id. 334.) This was not done in the present case, and the result of the omission is that the surrogate acted without jurisdiction in making the order for publication. This was not cured by any subsequent proceedings in the case. But there is another equally fatal objection to the jurisdiction of the surrogate in these proceedings. There is not a particle of evidence [345]*345in the case to show that this order for appearance to show cause was ever published. This was a fact ’the defendant was required to show affirmatively, as it was necessary to confer jurisdiction upon the surrogate to make the order of sale This is a fact which it is highly important should appear in the case, and the absence of it renders the whole proceedings before the surrogate coram non jndice. This notice to appear is in the nature of first process to summon the parties, and is indispensable to enable the surrogate to get jurisdiction of the persons of the parties interested in the proceedings. “ It is,” says the late Chief Justice Bronson, in the case of Bloom v. Burdick, (1 Hill, 139,) “ a cardinal principle in the administration of justice, that no man can be condemned or divested of his right Until he has had the opportunity of being heard. He must either by serving process, publishing notice, appointing a guardian, or in some other way, be brought into court, and if judgment is rendered against him before that is done, the proceedings will be as utterly void as though the court had undertaken to act where the subject matter was not in its cognizance.” See also the following cases: Borden v. Fitch, (15 John. 121;) Bigelow v. Stearns, (19 Id. 39;) Mills v. Martin, (19 Id. 33.) That this notice serves the purpose of bringing in the persons to be affected by the proceedings, is held in the case of Bloom v. Burdick, (supra,) and the absence of such notice has been held, in all analogous cases, to be fatal to the jurisdiction. In the case of Denning v. Corwin, (11 Wend.
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By the Court,
Mason, J.
It is true, in the action of ejecC ment the plaintiff must recover on the strength of his own title, •and not upon the weakness of his adversary’s title. In the .present case, however, all these parties claim title from the same common source, Barnabas Corwin, deceased, and there is no question as to the plaintiffs’ title and right to recover, unless their title was divested by the proceedings before the surrogate, on the application of the executors to sell this real estate to pay the debts of the said Barnabas Corwin. If those proceedings are valid, and can be maintained, upon the proof in the case, then the plaintiffs are not entitled to recover, and the judgment should be for the defendants. The plaintiffs made a perfect title to the premises, and when they rested their [343]*343case, were entitled to recover. As tbe defendants claimed that the plaintiffs’ title was divested by the proceedings had before the surrogate’s court, he was required to show affirmatively that the surrogate had jurisdiction as well of the subject matter as of the persons to be affected by the sale under the proceedings. The surrogate’s court is a creature of the statute; and being a court of inferior and limited jurisdiction, those claiming under its decree must show affirmatively that the surrogate had authority to make the decree, and that the facts upon which he acted gave him jurisdiction. (Dakin v. Hudson, 6 Cowen, 221. Bloom and others v. Burdick, 1 Hill, 130. Thatcher v. Rowell, 6 Wheat. 119. Cornell and others v. Barnes, 7 Hill, 35, and note e. The People v. Koeber, Id. 40. Sharp and others v. Spier, 4 Id. 76.) It is a familiar principle that every statute authority, in derogation of the common law, to divest the title of one person and transfer it to another, must be strictly pursued, or the title will not pass. (Sharp v. Spier, 4 Hill, 76. Atkins v. Kinnan, 20 Wend. 241. Sherwood v. Reade, 7 Hill, 434. Bloom v. Burdick, 1 Id. 130.) And it has been well said, that “ when lands are to be taken under a statute authority in derogation of the common larw every requisite of the statute having the semblance of benefit to the owner, must be strictly complied with.” (Sharp v. Johnson, 4 Hill, 99.) The following cases are referred to as sustaining this general doctrine. (Williams v. Peyton, 4 Wheat. 77. Hubly v. Keyser, 2 Pen. & Watts, 501. Jackson v. Esty, 7 Wend. 148. Sharp v. Spier, 4 Hill, 76. Jackson v. Shepard, 7 Cowen, 88. Atkins v. Kinnan, 20 Wend. 241. Denning v. Smith, 3 John. Ch. Rep. 332, 344.) The statute under which these proceedings before the surrogate were had, will be found in 1 Rep. Laws of 1813, p. 450, &c. The 23d section of the statute, at page 450, provides, “ that when any executor or administrator, whose testator or intestate shall have died seised of any real estate, shall discover or suspect that the personal estate of such testator or intestate is insufficient to pay his or her debts, such executor or administrator shall, as soon ;as conveniently may be, make a just and true account of the [344]*344said personal estate as far as. he or she can discover tbe same, and deliver the said accounts, to the judge of the court of probates, or to the surrogate of the county in which the probate of the will or administration of the estate of any such testator or intestate shall have been had, and request his aid in the premises; and the said judge or surrogate shall thereupon make an order directing all persons interested in such estate to appear before him at a certain day and place in the same order to be specified, not less than six weeks nor more than ten weeks after the day of making such order, to show cause why so much of the real estate, whereof such testator or intestate died seised, should not be sold, as will be suificicient to pay his or her debts; and which order shall be immediately thereafter published for four weeks successively in two or more of the public newspapers printed in this state, one of which shall be the paper, if any is published, in the county where probate, of any such will shall be had or administration granted,” &c. The statute further provides, that at the time and place specified in such published notice, the surrogate shall hear and examine the proofs and allegations of all persons interested, and “ if the surrogate shall find that the personal estate of such testator or intestate is not sufficient to pay his or her debts, the said surrogate shall make an order for sale,” &c. The first application to the surrogate, in this proceeding, is an ex parte one, and the appearance of no one is contemplated but the executors, or administrators; and they are required to deliver to the surrogate a just and ti;u.© account of the personal estate and debts as far as they can discover the same. This is absolutely necessary to confer jurisdiction upon the surrogate to make the order for publication. (Ford v. Walsworth, 15 Wend. 449. Bloom v. Burdick, 1 Hill, 130. Atkins v. Kinnan, 20 Wend. 241. Ford v. Walsworth, 19 Id. 334.) This was not done in the present case, and the result of the omission is that the surrogate acted without jurisdiction in making the order for publication. This was not cured by any subsequent proceedings in the case. But there is another equally fatal objection to the jurisdiction of the surrogate in these proceedings. There is not a particle of evidence [345]*345in the case to show that this order for appearance to show cause was ever published. This was a fact ’the defendant was required to show affirmatively, as it was necessary to confer jurisdiction upon the surrogate to make the order of sale This is a fact which it is highly important should appear in the case, and the absence of it renders the whole proceedings before the surrogate coram non jndice. This notice to appear is in the nature of first process to summon the parties, and is indispensable to enable the surrogate to get jurisdiction of the persons of the parties interested in the proceedings. “ It is,” says the late Chief Justice Bronson, in the case of Bloom v. Burdick, (1 Hill, 139,) “ a cardinal principle in the administration of justice, that no man can be condemned or divested of his right Until he has had the opportunity of being heard. He must either by serving process, publishing notice, appointing a guardian, or in some other way, be brought into court, and if judgment is rendered against him before that is done, the proceedings will be as utterly void as though the court had undertaken to act where the subject matter was not in its cognizance.” See also the following cases: Borden v. Fitch, (15 John. 121;) Bigelow v. Stearns, (19 Id. 39;) Mills v. Martin, (19 Id. 33.) That this notice serves the purpose of bringing in the persons to be affected by the proceedings, is held in the case of Bloom v. Burdick, (supra,) and the absence of such notice has been held, in all analogous cases, to be fatal to the jurisdiction. In the case of Denning v. Corwin, (11 Wend. 647,) a judgment of this court was held not valid where part of the premises belonged to owners unknown, unless the notice required by the statute in such case was duly published. And it was further held, that if the record did not show this, the judgment was absolutely void. So in the Matter of Underwood, an insolvent debtor, on an application for a discharge, the judge granted an order for ten weeks publication, in pursuance of the statute, and the publication only being six weeks, the judge then went on with the proceedings, and an order for an assignment was made; it was held that the order was a nullity, being made without authority ; and that the ten weeks publication was necessary to [346]*346give the judge jurisdiction. (3 Cowen, 59.) I cannot attach much importance to the argument urged by the defendant’s counsel that we should presume the publication was made, because the omission would seriously involve the acts of a public officer, and that we ought to presume he did his duty. This presumption cannot prevail where it is resorted to to make out a vital jurisdictional fact. (Bloom v. Burdick, 1 Hill, 130.) And I cannot think that there is sufficient proof in this case of the appointment of guardians in the proceedings, for the plaintiffs who were then infants. If this was not done, then the surrogate acted without jurisdiction, and his acts are void as to infant heirs for whom no guardian was appointed. (Bloom v. Burdick, supra.) But even if we assume that there was sufficient proof of the appointment of guardians, it does not relieve the case from the difficulty of the question of the want of jurisdiction. For without the requisite publication of the notice, the surrogate had no jurisdiction to appoint the guardians. Again ; it appears in the case that the executors have not applied the personal property to the payment of the debts, but that on the contrary, they have paid it towards the bequests in the will. The 26th section of the act under which these proceedings were had) (1 R. L. 452,) provides “ that no part of the real estate of any testator or intestate shall be ordered to be sold as aforesaid, unless the executors or administrators shall have duly made and filed an inventory of the goods, chattels and credits of such testator or intestate before the application for such sale, nor until the executors or administrators shall have applied the personal estate, or such part thereof as may have come to their hands, towards the payment of the debts of such testator or intestate \ and no more of the real estate shall be sold, in any case, than may be necessary to pay the residue of the said debts.” This statute is very explicit, and is in terms prohibitory upon the power of the surrogate’s court to order the sale of real estate to pay debts, until all of the testator’s personal property has been applied to that object. It was insisted, however, by the defendant’s counsel, that the personal property was bequeathed specifically to the widow and her son, [347]*347William Corwin, and that for that reason these executors were right in their proceedings in applying to sell the real estate to pay the debts, without first applying the personal property. If this were a turning point in the case, the question would be well worthy of a serious consideration; but it is unnecessary to decide this question; as the view that I have already taken of this case disposes of the defence set up. The plaintiffs are entitled to judgment upon their verdict, with costs,